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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on the Respondent's
motion for reconsideration of our decision in Department of
Justice, United States Immigration and Naturalization Service,
United States Border Patrol, El Paso, Texas, 40 FLRA No. 64
(1991). The General Counsel filed a response to the motion.

Section 2429.17 of the Authority's Rules and Regulations
permits a party that can establish the existence of
"extraordinary circumstances" to request reconsideration of a
decision of the Authority. For the following reasons, we
conclude that the Respondent has failed to establish that
extraordinary circumstances exist warranting reconsideration of
our decision. Accordingly, we will deny the Respondent's
motion.

II. The Decision in 40 FLRA No. 64

In 40 FLRA No. 64, the Authority concluded, in agreement
with the Judge, that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing to provide
information to the Union that it needed to determine whether to
file a grievance. The employee on whose behalf the Union was
considering filing a grievance had filed an Equal Employment
Opportunity (EEO) complaint after the Union had made its
request and the Respondent had refused to furnish the
information. The Authority found that the filing of the EEO
complaint did not relieve the Respondent from its obligation to
furnish the requested information under section 7114(b)(4) of
the Statute. The Authority concluded that section 7121(d) of
the Statute did not compel the dismissal of the complaint
because, among other things, it could not be determined, based
on the record, whether the filing of the EEO complaint
constituted an exercise of the employee's option under section
7121(d) that would preclude the filing of a grievance. The
Authority stated that that issue would be before an arbitrator
if a grievance were to be filed. Accordingly, the Authority
concluded that it could not be established that the information
request was moot.

The Authority found that the information sought was
reasonably available and necessary for the Union to perform its
representational duties within the meaning of section
7114(b)(4) of the Statute. It found further that sanitization
of certain documents would be necessary before their release so
as not to constitute an unwarranted invasion of privacy within
the meaning of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C). The Authority directed the Respondent to cease
and desist from engaging in its unlawful conduct and to
furnish, appropriately sanitized, the available data requested
by the Union.

III. The Respondent's Motion for Reconsideration and the General Counsel's Response

The Respondent asserts that reconsideration of the
decision in 40 FLRA No. 64 is warranted for three reasons.
First, it reiterates its argument that the potential grievant's
election of a statutory appeal procedure under section 7121(d)
of the Statute precluded the Union's right to information and
that the Authority's decision is inconsistent with, and
represents a departure from, established case law. In this
regard, the Respondent asserts that the General Counsel lacked
jurisdiction to "entertain" the unfair labor practice charge
which led to the complaint, Respondent's motion at 2, because
section 7116(d) requires that "[i]ssues which can properly be
raised under an appeals procedure may not be raised as unfair
labor practices . . . ."

Second, assuming that the General Counsel had
jurisdiction, the Respondent points out that the prospective
grievant was removed from his position for performance-based
reasons subsequent to the parties' submission of arguments to
the Authority on the Judge's decision in this case. Therefore,
the Respondent argues, the employee no longer has standing to
grieve, and the purpose for which the information was sought
has been mooted. Thus, the Respondent contends that, even if
it committed the unfair labor practice, the remedy "has . . .
become punitive[.]" Respondent's motion at 2.

The Respondent also argues that this case is no different
from U.S. Department of Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Helena District,
Helena, Montana, 39 FLRA 241 (1991) (Internal Revenue Service,
Helena District), petition for review filed sub nom.United
States Department of Treasury, Internal Revenue Service v.
FLRA, No. 91-1153 (D.C. Cir. Mar. 29, 1991). In that case, the
Authority found an unlawful failure to furnish information but
in the circumstances did not order the Respondent to furnish
the requested information.

Third, the Respondent states that the documents are the
same as were sought in U.S. Department of Justice, Immigration
and Naturalization Service, Border Patrol, El Paso, Texas, 37
FLRA 1310 (1990). Therefore, according to the Respondent,
assuming proper jurisdiction, the prior decision "must be
considered resjudicata, at least insofar as concerns the
remedy . . . ." Id. at 3.

The General Counsel's response to the motion for
reconsideration argues that the Respondent did not establish
extraordinary circumstances warranting review.

IV. Analysis and Conclusions

We conclude, based on our discussion below, that the
Respondent has not established the existence of extraordinary
circumstances, within the meaning of section 2429.17 of the
Statute, to warrant reconsideration of our decision in 40 FLRA
No. 64.

We again reject the Respondent's assertion that the
potential grievant's filing of an EEO complaint precluded the
Union's right to information. The information request was
made, and refused by the Respondent, before the employee filed
the EEO complaint. In this regard, the Respondent's reliance
on Library of Congress, 19 FLRA 267 (1985), is misplaced. In
that case, no unfair labor practice was found when an activity
refused a request for information to process a collateral
discrimination complaint, because it was determined that the
request effectively was turned down after the EEO complaint was
filed. Moreover, as noted in 40 FLRA No. 64, it is well
established that a contention that a potential grievance is not
grievable does not relieve an agency from its obligation to
furnish information. Slip op. at 10. If a grievance were
filed, it would be for the arbitrator ultimately to decide
whether that grievance would be arbitrable. Id. at 11.

We also find that removal of the potential grievant from
employment does not render moot the Union's need for
information, nor does it cause the remedy to become "punitive"
in nature.(*)Although the information was specifically
requested with regard to one employee's Officer Corps rating,
it is clear that the Union has the right to information that is
necessary for it to fulfill a broader range of its obligations
as exclusive bargaining representative. SeeAmerican
Federation of Government Employees, AFL-CIO, Local 1345 V.
FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (AFGE v. FLRA) (in a
case involving a request for information regarding two
bargaining unit employees whom the union had not been asked to
represent concerning their disciplinary discharges, the court
stated that the duty to provide information "must be evaluated
in the context of the full range of union responsibilities in
both the negotiation and the administration of a labor
agreement." (Emphasis in original.)) As the court stated in
AFGE v. FLRA, "[o]ften a policy established in connection with
a particular personnel action may affect employees beyond those
immediately involved." 793 F.2d at 1364. Therefore, we
conclude that although the potential grievant is no longer in
the bargaining unit, the remedy imposed in 40 FLRA No. 64
remains appropriate.

In Internal Revenue Service, Helena District, relied on by
the Respondent, we noted that the grievance involved had been
resolved without the requested information. We also noted that
neither the charging party nor the General Counsel had
requested that the remedy include the provision of the
requested data. We therefore determined that a cease and
desist order would be sufficient to remedy the unlawful failure
to furnish the information. In this case, however, the fact
that the employee involved is no longer employed by the
Respondent does not give the finality to the dispute evidenced
by the resolution of the grievance in the prior case. As
noted, the issue here may have implications beyond the
interests of the individual.

As requiring the Respondent to furnish the information was
deemed appropriate when the information was necessary to
explore a potential grievance, it follows that it is required
so long as it remains necessary for the Union otherwise to
fulfill its representational functions. Accordingly, the
violation requires the remedy granted in 40 FLRA No. 64. We
note, however, that in the compliance stage of this proceeding
the parties are free to reach an agreed-upon accommodation
regarding the provision of the data in view of the fact that
the potential grievant no longer is an employee. SeeU.S.
Department of Treasury, Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Salt Lake City, Utah, 40
FLRA 303, 311 (1991).

Finally, we conclude that a prior case involving these
parties, 37 FLRA 1310 (1990), is not resjudicata with regard
to this case. The material sought, the time periods covered by
the requests, and the purposes for the requests are different.
In addition, different arguments were made in the two cases.
SeeU.S. Department of Justice, Immigration and Naturalization
Service, Border Patrol, El Paso, Texas, 38 FLRA 1256, 1264-65
(1991), petition for review filed sub nom.Immigration and
Naturalization Service v. FLRA, No. 91-4153 (5th Cir. Feb. 28,
1991). The instant case concerns a request for information
initially sought to determine whether to file a grievance over
elements of an employee's Officer Corps rating for the period
November 1986 through November 1987. In the earlier case,
documents were sought concerning the annual performance
appraisal of the same employee, for the period of November 1986
through April 1987. Thus, although a major category of
information sought in both cases involved documents pertaining
to other employees similarly situated, the requested
information differed in the two cases. In addition, even for
the information that is common to the two cases, the periods
covered by the requests were different.

In sum, the Respondent has not established extraordinary
circumstances warranting reconsideration of our decision in 40
FLRA No. 64. The Respondent's motion for reconsideration will,
therefore, be denied.

V. Order

The Respondent's motion for reconsideration of the
Authority's Decision and Order in 40 FLRA No. 64 is denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

*/
In its motion for reconsideration, the Respondent requested
that the decision on reconsideration be held in abeyance until
the Merit Systems Protection Board (MSPB) had ruled on the
employee's appeal of his removal. Subsequently, Respondent
received and forwarded to the Authority a copy of the MSPB's
decision. The decision upholds the employee's removal. Robert
J. Marren v. Department of Justice, Dkt. No. DA07529110251 (May
16, 1991).